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Politics : View from the Center and Left -- Ignore unavailable to you. Want to Upgrade?

To: Lane3 who wrote (9585)	1/24/2006 8:56:04 AM
From: Lane3	Read Replies (1) \| Respond to of 541698

"Why overturning Roe will create chaos I've always been sympathetic to the anti-Roe pro-choice position, which argues that the repeal of Roe would de-polarize the abortion debate and return the issue to the states, where it arguably belongs. As a matter of law, Roe seems to have been poorly decided (though I'm no expert), and politically the hypothesis that it unnecessarily polarized the abortion debate seems plausible. So why not let the states create their own policies? Few will ban abortion altogether, the argument goes, and the resulting debate will split the Republican coalition. William Baude, a second-year law student at Yale, has the answer -- it's a novel argument that I haven't heard before: The emergence of this pro-choice anti-Roe movement seems fueled by a hope that if it were left to the states, and not the Supreme Court, to set abortion policy, the result would be a more secure and less acrimonious compromise. But what would actually happen if Roe were overturned? It's unlikely that Congress would pass a comprehensive federal ban on or right to abortion. So in the absence of Roe, states would largely be free to regulate the issue as they saw fit... A patchwork of state abortion regulations, however, will lead not to compromise, but chaos. ...States could make it illegal to cross state lines in order to abort a fetus - a tactic Ireland tried in the early 1990's, until a court decision and subsequent constitutional amendment recognized a right to travel. While the Supreme Court has recognized a constitutional right to travel across state lines, it has also recognized exceptions. If states can decree that life begins at conception, they might also be able to use child custody laws to curtail the movements of pregnant women... Furthermore, in recent decades, the Supreme Court has ruled that a state can regulate its citizens' activities while they are elsewhere and prosecute them for violations of state law upon their return... Abortion-rights states would undoubtedly respond in kind... Without Roe, the federal courts would be flooded with such disputes. Abortion cases, now further encumbered by issues of family rights and the powers of states to regulate trade across state lines, would once again end up before the Supreme Court. And though a doctrine called "conflict of laws" exists to settle legal disagreements between jurisdictions, this kind of interstate regulatory warfare has been mercifully rare in our nation's history. The precedents are muddy, the standards unclear, and so it is almost impossible to know how a future Supreme Court would resolve the matter. Indeed, American democracy has rarely resolved moral battles of this scope at the state level. The most significant moral conflict ever devolved to the states, after all, was slavery... Overturning Roe and leaving the states to regulate abortion will not be the compromise that ends the debate. Rather, it will worsen it. Pro-choice and pro-life states will not enjoy an easy and untroubled coexistence, as some would like to believe. Nor will overturning Roe get the federal government, or the federal courts, out of the business of abortion jurisprudence. Instead, state regulation will make a complex legal matter even more complicated, and the divisions over abortion that much wider. If Roe is reversed, the ensuing chaos will demand a federal resolution to the abortion battle - again. The sad reality is that the abortion debate is path dependent. If the states had originally made policy, the issue might not be so contentious. But Baude has convinced me that returning the issue to the states after more than thirty years of battle over Roe would not make things any better. Postscript: While we're on the subject of abortion, Slate's Will Saletan wrote an excellent op-ed that ran alongside Baude's in the Times. He argues a position I believe in strongly -- that the pro-choice movement work to bring down the abortion rate through contraceptive distribution and health education. Here's Saletan's conclusion: A year ago, Senator Hillary Clinton marked Roe's anniversary by reminding family planning advocates that abortion "represents a sad, even tragic choice to many, many women." Some people in the audience are reported to have gasped or shaken their heads during her speech. Perhaps they thought she had said too much. The truth is, she didn't say enough. What we need is an explicit pro-choice war on the abortion rate, coupled with a political message that anyone who stands in the way, yammering about chastity or a "culture of life," is not just anti-choice, but pro-abortion." brendan-nyhan.com